NEW YORK MORTGAGE TRUST INC (Form: 8-K, Received: 11/27/2019 16:56:00)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): November 27, 2019 (November 27, 2019)

NEW YORK MORTGAGE TRUST, INC.

(Exact name of registrant as specified in its charter)

Maryland		001-32216		47-0934168
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification No.)

90 Park Avenue

New York, New York 10016

(Address and zip code of

principal executive offices)

Registrant’s telephone number, including area code: (212) 792-0107

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

¨	Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 under the Securities Act (§230.405 of this chapter) or Rule 12b-2 under the Exchange Act (§240.12b-2 of this chapter).

Emerging Growth Company ¨

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨

Securities registered pursuant to Section 12(b) of the Act:

Title of Each Class	Trading Symbol(s)	Name of Each Exchange on Which Registered
Common Stock, par value $0.01 per share	NYMT	NASDAQ Stock Market

7.75% Series B Cumulative Redeemable Preferred Stock, par value $0.01 per share, $25.00 Liquidation Preference	NYMTP	NASDAQ Stock Market

7.875% Series C Cumulative Redeemable Preferred Stock, par value $0.01 per share, $25.00 Liquidation Preference	NYMTO	NASDAQ Stock Market

8.000% Series D Fixed-to-Floating Rate Cumulative Redeemable Preferred Stock, par value $0.01 per share, $25.00 Liquidation Preference	NYMTN	NASDAQ Stock Market

7.875% Series E Fixed-to-Floating Rate Cumulative Redeemable Preferred Stock, par value $0.01 per share, $25.00 Liquidation Preference	NYMTM	NASDAQ Stock Market

Item 1.01.

Entry into a Material Definitive Agreement.

On November 27, 2019, New York Mortgage Trust, Inc. (the “Company”) entered into an amendment (the “Amendment”) to its existing equity distribution agreement, dated March 29, 2019 (the “Equity Distribution Agreement,” and as amended, the “Amended Equity Distribution Agreement”), with JonesTrading Institutional Services LLC, as sales agent (the “Agent”), in connection with the Company’s existing “at-the-market” preferred equity offering program (the “Preferred ATM Program”). The Amendment (i) increased the maximum aggregate sales price of shares of preferred stock that the Company may offer and sell under the Preferred ATM Program and (ii) provides for the inclusion of sales of the Company’s 7.875% Series E Fixed-to-Floating Rate Cumulative Redeemable Preferred Stock, liquidation preference $25.00 per share, par value $0.01 per share (the “Series E Preferred Stock”), under the Preferred ATM Program.

Pursuant to the Amended Equity Distribution Agreement, the Company may offer and sell (i) shares of the Company’s 7.75% Series B Cumulative Redeemable Preferred Stock, liquidation preference $25.00 per share, par value $0.01 per share (the “Series B Preferred Stock”), (ii) shares of the Company’s 7.875% Series C Cumulative Redeemable Preferred Stock, liquidation preference $25.00 per share, par value $0.01 per share (the “Series C Preferred Stock”), (iii) shares of the Company’s 8.00% Series D Fixed-to-Floating Rate Cumulative Redeemable Preferred Stock, liquidation preference $25.00 per share, par value $0.01 per share (the “Series D Preferred Stock”), and (iv) shares of the Company’s Series E Preferred Stock (collectively, the “Preferred Stock”), having a maximum aggregate gross sales price of up to $131,477,592. Pursuant to a prospectus supplement filed on the date hereof, shares of Preferred Stock having a maximum aggregate sales price of $100,000,000 (the “Offered Shares”) remain available for offer and sale under the Amended Equity Distribution Agreement. The Company has previously sold shares of its Series B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock having an aggregate offering price of $31,477,592 under the Preferred ATM Program.

The Offered Shares will be issued pursuant to the Company’s Registration Statement on Form S-3 (File No. 333-226726). The Company filed a prospectus supplement, dated November 27, 2019, to the prospectus, dated August 9, 2018, with the Securities and Exchange Commission (“SEC”) in connection with the offer and sale of the Offered Shares.

The Amendment is attached hereto as Exhibit 1.1 and incorporated herein by reference. The foregoing description of the Amendment is not complete and is qualified in its entirety by reference to the Amendment filed herewith as an exhibit to this Current Report on Form 8-K.

In connection with the filing of the Amendment, the Company is filing as Exhibit 5.1 to this Current Report on Form 8-K the opinion of its Maryland counsel, Venable LLP, regarding the validity of the Offered Shares.

This Current Report on Form 8-K shall not constitute an offer to sell or a solicitation of an offer to buy any securities, nor shall there be any sale of securities in any state or jurisdiction in which such an offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or other jurisdiction.

Item 5.03.

Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

On November 27, 2019, the Company filed with the State Department of Assessments and Taxation of Maryland Articles Supplementary to classify and designate 3,000,000 shares of the Company’s authorized but unissued preferred stock, par value $0.01 per share, as additional shares of Series E Preferred Stock (the “Additional Series E Articles Supplementary”), with the powers, designations, preferences and other rights as set forth in the Articles Supplementary filed as Exhibit 3.9 to the Company’s Registration Statement on Form 8-A, filed with the SEC on October 15, 2019 (the “October 2019 Series E Articles Supplementary”). The Additional Series E Articles Supplementary became effective upon filing on November 27, 2019, and upon such effectiveness, the Company was authorized to issue an aggregate of 9,900,000 shares of Series E Preferred Stock.

A copy of the Additional Series E Articles Supplementary is filed as Exhibit 3.1 to this Current Report on Form 8-K, and the information in the October 2019 Series E Articles Supplementary is incorporated into this Item 5.03 by reference. The description of the terms of the Additional Series E Articles Supplementary in this Item 5.03 is qualified in its entirety by reference to Exhibit 3.1 hereto and the October 2019 Series E Articles Supplementary.

Item 9.01.

Financial Statements and Exhibits.

(d) Exhibits. The following exhibits are being filed herewith this Current Report on Form 8-K.

Exhibit No.		Description
1. 1†		Amendment No. 1, dated November 27, 2019, to Equity Distribution Agreement, dated March 29, 2019, by and between the Company and JonesTrading Institutional Services LLC.
3.1†		Articles Supplementary classifying and designating 3,000,000 additional shares of Series E Preferred Stock.
3.2		Articles Supplementary designating 7.875% Series E Fixed-to-Floating Rate Cumulative Redeemable Preferred Stock (incorporated by reference to Exhibit 3.9 to the Company’s Registration Statement on Form 8-A, filed on October 15, 2019).
5.1†		Opinion of Venable LLP regarding legality of the Offered Shares.
23.1		Consent of Venable LLP (included in Exhibit 5.1 hereto).
104		Cover Page Interactive Data File-the cover page XBRL tags are embedded within the Inline XBRL document

† Filed herewith.

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

	NEW YORK MORTGAGE TRUST, INC.
	(Registrant)

Date: November 27, 2019	By:	/s/ Steven R. Mumma
		Steven R. Mumma
		Chief Executive Officer

Exhibit 1.1

New York Mortgage Trust, Inc.

AMENDMENT NO. 1
TO
EQUITY DISTRIBUTION AGREEMENT

November 27, 2019

JonesTrading Institutional Services LLC
757 Third Avenue, 23^rd Floor
New York, New York 10017

Ladies and Gentlemen:

Reference is made to the Equity Distribution Agreement, dated March 29, 2019 (the “Equity Distribution Agreement”), between New York Mortgage Trust, Inc., a Maryland corporation (the “Company”), and JonesTrading Institutional Services LLC (the “Placement Agent”), pursuant to which the Company agreed to sell through the Placement Agent, acting as agent and/or principal, up to an aggregate of $50,000,000 of shares of the Company’s 7.75% Series B Cumulative Redeemable Preferred Stock, par value $0.01 per share, the Company’s 7.875% Series C Cumulative Redeemable Preferred Stock, par value $0.01 per share, and the Company’s 8.00% Series D Fixed-to-Floating Rate Cumulative Redeemable Preferred Stock, par value $0.01 per share. All capitalized terms used in this Amendment No. 1 to the Equity Distribution Agreement between the Company and the Placement Agent (this “Amendment”) and not otherwise defined herein shall have the respective meanings assigned to them in the Equity Distribution Agreement. The Company and the Placement Agent agree as follows:

Amendments to Equity Distribution Agreement. The Equity Distribution Agreement is amended as follows:

The first sentence of the first paragraph of Section 1 of the Equity Distribution Agreement is hereby deleted and replaced with the following:

“The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through the Placement Agent, acting as agent and/or principal, up to an aggregate of $131,477,592 of shares (the “Securities”) of any of the Company’s 7.75% Series B Cumulative Redeemable Preferred Stock, par value $0.01 per share (the “Series B Preferred Stock”), the Company’s 7.875% Series C Cumulative Redeemable Preferred Stock, par value $0.01 per share (the “Series C Preferred Stock”), the Company’s 8.00% Series D Fixed-to-Floating Rate Cumulative Redeemable Preferred Stock, par value $0.01 per share (the “Series D Preferred Stock”), and the Company’s 7.875% Series E Fixed-to-Floating Rate Cumulative Redeemable Preferred Stock, par value $0.01 per share (the “Series E Preferred Stock” and, together with the Series B Preferred Stock, the Series C Preferred Stock and the Series D Preferred Stock, the “Preferred Stock”); provided, however, that in no event shall the Company issue or sell through the Placement Agent such number or dollar amount of Securities that would (i) exceed the number or dollar amount of shares of Preferred Stock registered on an effective registration statement pursuant to which the offering is being made, (ii) exceed the number of authorized but unissued shares of Preferred Stock under the Company’s organizational documents, (iii) exceed the number or dollar amount of shares of Preferred Stock permitted to be sold under Form S-3 (including General Instruction I.B.6 thereof, if applicable) or (iv) exceed the number or dollar amount of shares of Preferred Stock for which the Company has filed a Prospectus Supplement (defined below) (the lesser of (i), (ii), (iii), and (iv), the “Maximum Amount”).”

The first sentence of Section 2 of the Equity Distribution Agreement is hereby deleted and replaced with the following:

“Each time that the Company wishes to issue and sell the Securities hereunder (each, a “Placement”), it will notify the Placement Agent by email notice (or other method mutually agreed to in writing by the parties) containing the parameters in accordance with which it desires the Securities to be sold, which shall at a minimum include the maximum number of each series of Preferred Stock to be offered, sold and issued (the “Placement Securities”), the time period during which sales are requested to be made, any limitation on the number of Securities that may be sold in any one day, any minimum price below which sales may not be made, and the maximum prices above which sales of shares of Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and Series E Preferred Stock may not be made (a “Placement Notice”), a form of which containing such parameters necessary is attached hereto as Exhibit A.”

Section 5(a)(37) of the Equity Distribution Agreement is hereby deleted and replaced with the following:

“[Reserved].”

The first paragraph of the Form of Placement Notice attached as Exhibit A to the Equity Distribution Agreement is hereby deleted and replaced with the following:

“Pursuant to the terms and subject to the conditions contained in the Equity Distribution Agreement between New York Mortgage Trust, Inc. (the “Company”) and JonesTrading Institutional Services LLC (the “Placement Agent”) dated March 29, 2019, as amended on November 27, 2019 (the “Agreement”), I hereby request on behalf of the Company that the Placement Agent sell [(a) up to $[●] of shares of the Company’s 7.75% Series B Cumulative Redeemable Preferred Stock, par value $0.01 per share, at a minimum market price of $[●] per share and a maximum market price of $[●] per share, (b) up to $[●] of shares of the Company’s 7.875% Series C Cumulative Redeemable Preferred Stock, par value $0.01 per share, at a minimum market price of $[●] per share and a maximum market price of $[●] per share, (c) up to $[●] of shares of the Company’s 8.00% Series D Fixed-to-Floating Rate Cumulative Redeemable Preferred Stock, par value $0.01 per share, at a minimum market price of $[●] per share and a maximum market price of $[●] per share, and (d) up to $[●] of shares of the Company’s 7.875% Series E Fixed-to-Floating Rate Cumulative Redeemable Preferred Stock, par value $0.01 per share, at a minimum market price of $[●] per share and a maximum market price of $[●] per share], beginning on [insert start date] and ending on [insert end date] [such date in the future as notified in writing (including by email) by the Company].”

The second sentence of the Form of Officer’s Certificate attached as Exhibit F to the Equity Distribution Agreement shall be amended to add “, as amended on November 27, 2019” immediately before “(the “Equity Distribution Agreement”)”.

Prospectus Supplement. The Company agrees to file a 424(b) Prospectus Supplement reflecting this Amendment within two business days of the date hereof.

No Other Amendments. Except as set forth in Part A above, all the terms and provisions of the Equity Distribution Agreement shall continue in full force and effect.

Counterparts. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed Amendment by one party to the other may be made by facsimile or email transmission.

[Signature Page Follows]

If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this Amendment, along with all counterparts, will become a binding agreement by and between the Placement Agent and the Company in accordance with its terms.

	Very truly yours,

	NEW YORK MORTGAGE TRUST, INC.

	By:	/s/ Steven R. Mumma
		Name: Steven R. Mumma
		Title: Chief Executive Officer

CONFIRMED AND ACCEPTED, as of the date first above written:

JONESTRADING INSTITUTIONAL SERVICES LLC

By:	/s/ Burke Cook
	Name: Burke Cook
	Title: General Counsel

Exhibit 3.1

NEW YORK MORTGAGE TRUST, INC.

ARTICLES SUPPLEMENTARY

7.875% Series E Fixed-to-Floating Rate Cumulative Redeemable Preferred Stock

New York Mortgage Trust, Inc., a Maryland corporation (the “Corporation”), hereby certifies to the State Department of Assessments and Taxation of Maryland that:

FIRST: Under the power contained in Article VI of the charter of the Corporation, as amended (the “Charter”), the Board of Directors of the Corporation (the “Board”) by duly adopted resolutions classified and designated 3,000,000 shares of authorized but unissued Preferred Stock (as defined in the Charter) as additional shares (the “Additional Series E Shares”) of Series E Preferred Stock (as defined in the Articles Supplementary dated October 15, 2019 (the “Series E Articles Supplementary”)), with the preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications and terms and conditions of redemption of the Series E Preferred Stock set forth in the Series E Articles Supplementary.

SECOND: The Additional Series E Shares have been classified and designated by the Board under the authority contained in the Charter. After giving effect to the classification and designation of the Additional Series E Shares set forth herein, the Corporation has authority to issue 9,900,000 shares of Series E Preferred Stock.

THIRD: These Articles Supplementary have been approved by the Board in the manner and by the vote required by law.

FOURTH: The undersigned acknowledges these Articles Supplementary to be the corporate act of the Corporation and, as to all matters or facts required to be verified under oath, the undersigned acknowledges that to the best of his knowledge, information and belief, these matters and facts are true in all material respects and that this statement is made under the penalties for perjury.

IN WITNESS WHEREOF, the Corporation has caused these Articles Supplementary to be executed in its name and on its behalf by its Chief Executive Officer and attested to by its Chief Operating Officer and Secretary on this 26th day of November, 2019.

ATTEST:		New York Mortgage Trust, Inc.

By:	/s/ Nathan R. Reese	By:	/s/ Steven R. Mumma
Name:	Nathan R. Reese	Name:	Steven R. Mumma
Title:	Chief Operating Officer and Secretary	Title:	Chief Executive Officer

Exhibit 5.1

November 27, 2019

New York Mortgage Trust, Inc.

90 Park Avenue, 23^rd Floor

New York, New York 10016

Re: Registration Statement on Form S-3ASR

Ladies and Gentlemen:

We have served as Maryland counsel to New York Mortgage Trust, Inc., a Maryland corporation (the “Company”), in connection with certain matters of Maryland law arising out of the sale and issuance by the Company of shares (the “Shares”) of the Company’s 7.75% Series B Cumulative Redeemable Preferred Stock, par value $0.01 per share (“Series B Preferred Stock”), 7.875% Series C Cumulative Redeemable Preferred Stock, par value $0.01 per share (“Series C Preferred Stock”), 8.00% Series D Fixed-to-Floating Rate Cumulative Redeemable Preferred Stock, par value $0.01 per share (the “Series D Preferred Stock”), and 7.875% Series E Fixed-to-Floating Rate Cumulative Redeemable Preferred Stock, par value $0.01 per share (the “Series E Preferred Stock” and, together with the Series B Preferred Stock, the Series C Preferred Stock and the Series D Preferred Stock, the “Preferred Stock”), having an aggregate gross sales price of $131,477,592, of which shares having an aggregate offering price of up to $100,000,000 remain available for sale and issuance as of November 27, 2019, covered by the above-referenced Registration Statement, and all amendments related thereto (the “Registration Statement”), filed by the Company with the United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”).

In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (hereinafter collectively referred to as the “Documents”):

1. The Registration Statement and the related form of prospectus included therein, in the form in which it was transmitted to the Commission under the 1933 Act;

2. The charter of the Company (the “Charter”), certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”);

3. The Amended and Restated Bylaws of the Company, certified as of the date hereof by an officer of the Company;

4. Resolutions (the “Resolutions”) adopted by the Board of Directors of the Company (the “Board”), relating to, among other matters, the sale and issuance of the Shares and the Conversion Shares (as defined herein), certified as of the date hereof by an officer of the Company;

New York Mortgage Trust, Inc.

November 27, 2019

Page 2

5. A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;

6. A certificate executed by an officer of the Company, dated as of the date hereof; and

7. Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and qualifications stated herein.

In expressing the opinion set forth below, we have assumed the following:

1. Each individual executing any of the Documents, whether on behalf of such individual or another person, is legally competent to do so.

2. Each individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so.

3. Each of the parties (other than the Company) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a signatory, and such party’s obligations set forth therein are legal, valid and binding and are enforceable in accordance with all stated terms.

4. All Documents submitted to us as originals are authentic. The form and content of all Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this opinion from the form and content of such Documents as executed and delivered. All Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All representations, warranties, statements and information as to matters of fact contained in the Documents are true and complete. There has been no oral or written modification of or amendment to any of the Documents, and there has been no waiver of any of the provisions of any of the Documents, by action or omission of the parties or otherwise.

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November 27, 2019

Page 3

5. Upon the issuance of any shares of common stock, $0.01 par value per share (the “Common Stock”), of the Company issuable upon the conversion of any of the Shares (the “Conversion Shares”), the total number of shares of Common Stock issued and outstanding will not exceed the total number of shares of Common Stock that the Company is then authorized to issue under the Charter.

6. Upon the issuance of any Shares, the total number of shares of the applicable series of Preferred Stock issued and outstanding will not exceed the total number of shares of such series of Preferred Stock the Company is then authorized to issue under the Charter, including the Articles Supplementary classifying and designating such series of Preferred Stock and the Articles Supplementary designating additional shares of such series of Preferred Stock.

7. The Shares and the Conversion Shares will not be issued or transferred in violation of the restrictions on transfer and ownership contained in Article VII of the Charter or, with regard to the Preferred Stock, any provision of the Articles Supplementary classifying and designating such series of Preferred Stock.

Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:

1. The Company is a corporation duly incorporated and existing under the laws of the State of Maryland and is in good standing with the SDAT.

2. The issuance of the Shares has been duly authorized and, when issued and delivered against payment therefor in accordance with the Resolutions and the Registration Statement, the Shares will be validly issued, fully paid and nonassessable.

3. The issuance of the Conversion Shares has been duly authorized and, when issued and delivered by the Company upon conversion of the Shares in accordance with the Registration Statement, the Resolutions and the Charter, the Conversion Shares will be validly issued, fully paid and nonassessable.

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Page 4

The foregoing opinion is limited to the laws of the State of Maryland and we do not express any opinion herein concerning federal law or any other state law. We express no opinion as to compliance with any federal or state securities laws, including the securities laws of the State of Maryland, or as to federal or state laws regarding fraudulent transfers or the laws, codes or regulations of any municipality or other local jurisdiction. To the extent that any matter as to which our opinion is expressed herein would be governed by the laws of any jurisdiction other than the State of Maryland, we do not express any opinion on such matter. The opinion expressed herein is subject to the effect of any judicial decision which may permit the introduction of parol evidence to modify the terms or the interpretation of agreements.

The opinion expressed herein is limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.

This opinion is being furnished to you for submission to the Commission as an exhibit to the Company’s Current Report on Form 8-K (the “Current Report”), which is incorporated by reference in the Registration Statement. We hereby consent to the filing of this opinion as an exhibit to the Current Report and the said incorporation by reference and to the use of the name of our firm therein. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the 1933 Act.

Very truly yours,

/s/ Venable LLP